Contact: Carlo A. C. de Oliveira, Attorney
Phillip G. Steck, Attorney
April 3, 2017 (Cooper Erving & Savage LLP)


In an important case that defines the FMLA (Family and Medical Leave) rights of women after childbirth, the United States Court of Appeals for the Second Circuit, based in New York City, and the United States District Court for the Northern District of New York, based in Syracuse, have ruled that an employer must notify a pregnant woman of any adverse consequences which taking FMLA leave may have on her employment benefits.

On March 30, 2017, after a 7-year long court battle, which included an appeal to the Second Circuit, District Court Judge Norman A. Mordue ruled that the Cairo-Durham Central School District interfered with a former teacher’s FMLA rights by failing to give her notice that she would lose seniority while on unpaid FMLA leave. The plaintiff, Donna Scarpinati de Oliveira, was terminated from her employment after the former Superintendent of the Schools deducted the time the plaintiff spent on unpaid FMLA maternity leave from her seniority, resulting in her layoff.

Ms. de Oliveira, grew up in Cairo and graduated from the Cairo-Durham Central School District. After beginning her teaching career, also at the District, she moved to Maryland, where she taught and became a tenured teacher. In 2007, she returned to New York to be near her family and friends and to teach at Cairo-Durham. Ms. de Oliveira’s fate changed after she gave birth to her child in the summer of 2009. Ms. de Oliveira sought unpaid FMLA leave to care for her newborn child for 23 days. Unbeknownst to her, the District reduced her seniority by those 23 days. As a result, Ms. de Oliveira lost her job as part of a layoff of the four least senior teachers in the school. Had she been advised that her seniority status would have been affected by her unpaid FMLA leave, she would have not taken as much unpaid leave and would not have been terminated from her employment.

Judge Mordue stated that “Plaintiff’s testimony and affidavits clearly and consistently show that that she would not have taken unpaid FMLA leave if the District defendants had properly notified her that she would not accrue seniority while on such leave.” (deOliveira v. Cairo Durham Case No. 1:11-cv-0393, p. 9. Judge Mordue further found that Plaintiff “had child care available whenever she decided to return to teaching; she and the baby were both healthy; she wanted to work; she came back to work after using only about half of her FMLA leave; she knew that she and a few other teachers had the least seniority; she was aware that layoffs could occur any year due to budgetary reasons, a decline in enrollment, or voter rejection of the school budget; and when she decided to take unpaid FMLA leave, she believed that all her terms and conditions of employment – including seniority – would not be adversely affected.” A trial is scheduled to take place on August 21, 2017, at which time a Jury will determine what damages the School District must pay Ms. de Oliveira for violation of her FMLA rights.

Ms. deOliveira was represented by attorneys Carlo A. C. de Oliveira and Phillip G. Steck of Cooper Erving & Savage LLP. Mr. Steck commented: “Labor laws are passed such as FMLA but unfortunately they are often ignored. This is the second case we have had where a public employer ignored the clear requirements of the FMLA.” Last year, Mr. Steck and Mr. de Oliveira obtained a federal injunction to stop a school district from terminating the employment of a teacher who took leave to care for her newborn children.